Mining activists hopeful new government will address abuses abroad

“It’s good news…it’s a significant change.”

Mining justice activists are cautiously optimistic about increased regulation of Canadian mining companies abroad after the Liberal government’s rise to power in October.

“It is good news,” said Salvador Herencia, a lawyer and the director of the human rights clinic at the University of Ottawa. “It’s a significant change.”

Canada’s poor record of addressing abuses committed by extractive companies abroad was criticized in a report by the United Nations human rights committee this past summer, which was largely ignored by the Conservative government.

While ensuring the sustainable and safe operation of Canadian extractive companies in other countries wasn’t part of their election platform, the Liberal party had previously pledged to improve the “transparency, accountability and sustainability” in the mining sector.

Herencia said that Prime Minister Justin Trudeau had already shown support for regulation of the mining sector as an MP in Papineau, when he voted for controversial Bill C-300 in 2010.

The bill would have created penalties for companies found committing human rights abuses or breaking environmental or labour standards by stripping them of Canadian governmental support and resources.

Herencia called Bill C-300 “the only significant effort” in addressing the accountability of oil, gas, and mining companies in developing countries.

The Liberals also voted in favour of electing an ombudsperson to investigate abuse complaints against extractive companies.

Canada has a heavy stake in the mining industry, with over 50 per cent of the world’s publicly listed exploration mining companies headquartered within its borders, according to government numbers from 2013.

Canadian companies like B.C.-based Tahoe Resources and Ontario’s Hudbay Minerals are the most notable companies who have come under legal fire for alleged negligence resulting in environmental damage, physical harm and even death of indigenous people residing near mines in Guatemala.

The plaintiffs in the Tahoe Resources case recently lost their bid to have their suit of negligence and battery tried in Canadian court. They claim that the mine’s private security force opened fire during a peaceful protest, wounding seven men.

“A Global Village”

“You don’t have a government that is implacably hostile to justice and environment issues and is pathetically pro-business”

John McKay, Liberal MP of Scarborough-Guildwood, proposed Bill C-300 because he believed there was a “legislative gap” when it came to the activities of Canadian extractive companies operating abroad.

The bill was defeated in its third reading, largely due to heavy industry lobbying, according to McKay. However, he said the climate is more receptive now to legislative changes like Bill C-300.

“You don’t have a government that is implacably hostile to justice and environment issues and is pathetically pro-business,” said McKay, referring to the former Conservative government.

As evidence, he listed members of the Liberal caucus with strong human rights and environmental credentials, such as Catherine McKenna, who is a human rights and social justice lawyer and was appointed as minister of environment and climate change.

These members would be more willing to look at a legislative framework to deal with recurring abuses committed by Canadian mining companies, said McKay.

“We do live in a global village and you can’t maintain a colonialist attitude toward the countries in which you operate,” said McKay.

He said he thinks that the government will demand more transparency and accountability from Canadian mining companies operating abroad, but that he doesn’t know in what form or how long it will take.

Herencia said that the recent decision to implement the United Nations Declaration of the Rights of Indigenous Peoples was a step in the right direction in acknowledging the rights of indigenous people in Canada and abroad.

The declaration calls on governments to get “free, prior and informed consent” prior to decisions about land, natural resources, or relocation of indigenous peoples.

Herencia hopes that this dedication to working with indigenous peoples will have a positive effect on communities affected by Canadian mining companies abroad, many of which don’t give consent to mining operations and are sometimes evicted by force.

“It’s a strong message,” said Herencia.

He added that this was an indication that the treatment of indigenous peoples under the Harper government needed to be revisited and improved.

While Herencia lauded Trudeau’s ‘yes’ vote to Bill C-300, he criticized the fact that redressing the issue of business and human rights was not included in the Liberal party platform. He said there needs to be a plan in place for the future.

“Whether it’s mediation, litigation, an ombudsperson, it has to be effective and it actually has to provide victims with a reliable source for them to address their complaints,” said Herencia.

“We see mining injustice as sitting in a much larger context…When you look at the broader picture, it’s not super encouraging”

Rachel Small, a member of the mining rights group Mining Injustice Solidarity Network, said that while Trudeau did vote in favour of Bill C-300, the Liberal party helped kill it.

“The bill was publically criticized in a huge way by Michael Ignatieff, the Liberal leader,” said Small.

Ignatieff told reporters that there were “some problems” with the bill, and on the day of the vote he and other Liberal MPs didn’t show up.

Small said that Trudeau’s vote for Bill C-51, known as the ‘anti-terrorism bill,’ also made her concerned about the implications for legitimate and peaceful protest in developing countries.

Any activities that affect the economic or financial stability of Canada are offences under the bill, which could be used to criminalize protest if protesters blocked access to a highway or rallied around a pipeline.

Small said she was worried this restriction could extend to indigenous activists protesting mining operations abroad.

“We see mining injustice as sitting in a much larger context,” Small said. “When you look at the broader picture, it’s not super encouraging.”

These restrictions mirror bogus charges that are often levied against human rights defenders in Guatemala, said Small.

“Systemic Human Rights Abuses”

The issue of responsible regulation of Canadian extractive companies was raised in a report released by the United Nations human rights committee this past summer.

Along with concern about the far-reaching powers of Bill C-51 and the lack of a national inquiry into the high numbers of murdered and missing indigenous women, the report also highlighted the absence of an effective body or legal framework within Canada to govern the activities of mining companies operating abroad.

Mining NGOs and faith groups submitted a report to the committee demanding justice for what they called “systemic human rights abuses” on the part of Canadian mining companies.

There is little access to Canadian courts under current legislation. Indigenous plaintiffs from Guatemala have been successful in bringing their case against Hudbay Minerals to Canada, alleging negligence that resulted in the death, injury and sexual assault of several inhabitants. The case is currently before the courts, and lawyers say it could drag on for years.

The Fenix nickel mine in El Estor, Guatemala, that used to be owned by Canadian company Hudbay Minerals               [Photo courtesy of Erica Henderson]

The current mechanisms in place in Canada only offer non-binding mediation between extractive companies and complainants, with no demand on either party to resolve the issue. There are no real penalties except the threat of withdrawing government support of extractive companies, such as embassy advocacy.

Herencia said that Canadians “need to be at the forefront leading this debate, not trying to disguise or to address human rights violations” with corporate responsibility strategies.

“We’ve been working very hard on these issues to address concerns for a while now.”

Ben Chalmers, spokesperson for the Mining Association of Canada, thinks that the industry has markedly improved accountability and transparency and that current mechanisms are working.

“When C-300 rolled around, we did not have a collective capacity for international issues with respect to mining,” he said. “We’ve been working very hard on these issues to address concerns for a while now.”

He cited the implementation of “publish what you pay”, part of the extractive industries transparency initiative, to report payments that companies make to governments.

“We have handled some very significant issues, and there’s more work to be done certainly,” said Chalmers.

He said that if the Liberal government would like to further address the issue, the association would work with them.

“To this day, countries that are powerhouses of the extractive industries like the U.K., the Netherlands, Sweden and Norway have these types of national plans”

Herencia disagreed that current mechanisms were sufficient. He suggested that the government look at countries which have created national action plans under the United Nations guiding principles on business and human rights. These guidelines protect against human rights abuses by promoting legislation, regulation or other measures by governments.

“To this day, countries that are powerhouses of the extractive industries like the U.K., the Netherlands, Sweden and Norway have these types of national plans,” said Herencia.

Small said that legislative reform and open access to Canadian courts are more likely under the current government.

“But only if we all really push them and really show them that we’re watching and we’re holding them accountable for their promises,” said Small.

Header image [Photo © Karen Henderson]